Lost Art Liquids, LLC v. Food and Drug Administration et al

Filing 52

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm: Pursuant to 5 U.S.C. § 552a(b)(11) and Federal Rule of Civil Procedure 26(c), it is hereby ORDERED that: (see attached) (jm)

7

BRETT A. SHUMATE
Deputy A~ssistant Attorney General
JOEL -McELVAIN
Assistant Director
ERIC B. BECKENHALTER, Cal. Bar No. 237526
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Pr~o~ grams Branch
2 Massachusetts Ave. NVIj
0
Washin ton, DC 20530
Tel: 20~ 514-3338
Fax: [phone]
Emai : [e-mail]

8

Attorneysfor Defendants

1
2
3
4
5
6

~`""_~
FEg ~

6 2~~
U
of c,

~p~STR~C~
GENT

~~`

9
10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE CENTRAL DISTRICT OF CALIFORNIA

12

No. 2:16-cv-03468-SJO-FFM

LOST ART LIQUIDS,
13
Plaintiff;
14

[
ORDER

15
16

]PROTECTIVE

FOOD AND DRUG
ADMINISTRATION,et al.,

17

Defendants.

18
19
2
0
21
22

Pursuant to 5 U.S.C. § 552a(b)(11) and Federal Rule of Civil Procedure
26(c), it is hereby ORDERED that:
1.

This Order shall govern the disclosure, handling, and use ofthe

23

f
ollowing documents and other information in the administrative record for this

24

case, which are hereinafter referred to as "Protected Information":

25

a.

On any document titled "PUBLIC SUBMISSION" and marked

2
6

Category: Individual Consumer," any personally identifying
"

27

information in the "submitter information" field, including but

28

1

1

not limited to name, address, and e-mail address if that

2

information is not disclosed elsewhere in the document; and

3

b.

One other document marked by the Food and Drug

4

Administration("FDA")as "Confidential" on the document

5

header found at Bates-numbered pages FDA 231,199-231,225.

6

2
.

All information that is derived from Protected Information, even if

7

incorporated into another document or compilation or referred to in testimony,

8

shall be treated as Protected Information; provided, however, that summaries or

9

statistical compilations of Protected Information that do not contain information by

10
11

which specific individuals can be identified are not covered by this Order.
3.

Defendants are authorized to release Protected Information covered by

12

the Privacy Act, 5 U.S.C. § 552a, without obtaining the prior written consent of the

13

individuals to whom such records or information pertain.

14
15

4.

Before production, a producing party shall mark Protected

Information with "PRODUCED SUBJECT TO PROTECTIVE ORDER,"

16 "
SUBJECT TO PROTECTIVE ORDER," or a similar marking. For Protected
17

Information whose medium makes such marking impracticable, such as electronic

18

f
iles, a producing party shall mark any CD-ROM or diskette case, and/or any

19

accompanying paper or email cover letter, with "PRODUCED SUBJECT TO

2
0

PROTECTIVE ORDER,""SUBJECT TO PROTECTIVE ORDER," or a similar

21

marking. Categories of documents may be marked generally ifthe identification of

22

individual documents is impracticable.

23

5.

Protected Information may be used only for the purposes of litigating

24

this civil action and any appeals thereof. Except as provided in Paragraph 6, no

25

person who obtains access to Protected Information pursuant to this Order shall

2
6

disclose such Protected Information without either the prior, express, written

27

consent ofthe producing party or its counsel, or further order ofthe Court.

28

2

6.

Counsel for the parties may disclose Protected Information only to(a)

2

the Court and its staff, including court reporters;(b)the attorneys of record for the

3

parties;(c) associates and staff ofthe attorneys of record for the parties, but only to

4

the extent necessary to perform their duties;(d)Defendants and their employees;

5 ( Plaintiff;(fl outside experts or consultants retained by any party, including their
e)
6

associates and staff, but only to the extent necessary to provide their services; and

7 ( third-party contractors engaged in copying, organizing, filing, coding,
g)
8

converting, storing, or retrieving data or information, including as part of a

9

litigation support system, but only to the extent necessary to render such services.

10

7
.

Before Plaintiff's counsel discloses Protected Information to any

11

person listed in Paragraph 6(e)~g), that person must be provided with a copy of

12

this Order, and must sign a copy ofthe Acknowledgment and Consent form

13

attached hereto (E~ibit A). Plaintiff's counsel shall retain copies of the signed

14

Acknowledgment and Consent forms in their litigation files and shall make them

15

available to Defendants' counsel upon request.

16
17

8
.

If Protected Information is disclosed to any person not listed in

Paragraph 6, upon learning of such disclosure Plaintiff's counsel must promptly

18 ( inform Defendants ofthe disclosure, including the surrounding facts and
a)
19

circumstances; and (b)request the return or destruction ofthe Protected

2
0

Information and seek to minimize any further unauthorized disclosure.

21

9
.

Any person to whom Plaintiff's counsel discloses Protected

22

Information shall return to Plaintiffls counsel(or destroy, and certify such

23

destruction in writing to Plaintiff's counsel) all such materials and any copies

24

thereof upon termination of this civil action and any appeals thereof, or when they

25

are no longer assigned or retained to work on this case, whichever comes first.

2
6

10.

A failure to designate any materials as Protected Information shall not

27

constitute a waiver of any party's assertion that the materials are covered by this

28

Order. A producing party may notify a receiving party that Protected Information

3

1

was inadvertently disclosed without first being marked as described in Paragraph

2

4 Upon receipt of such notice, the receiving party shall immediately treat the
.

3

materials as if they had been properly designated as Protected Information, and

4

shall promptly place an appropriate marking on the materials.

5

1 1.

Before filing a document containing Protected Information, a party

6

shall move for leave to file the document under seal pursuant to Civil Local Rule

7

79-5. If leave is granted, the party shall file a public version ofthe sealed

8

document, with the Protected Information redacted, as soon as practicable. If leave

9

is denied, the parties shall confer to discuss procedures necessary to prevent the

10

disclosure ofthe Protected Information. Prior to using any Protected Information

11

in open court, counsel for the parties shall confer to discuss procedures necessary

12

to prevent the disclosure ofthat information, including, without limitation, moving

13

the Court to close the proceedings.

14

12.

Nothing in this Order shall be construed to limit the right of either

15

party to introduce Protected Information into evidence, subject to the Federal Rules

16

of Civil Procedure, Federal Rules ofEvidence, applicable statutes or regulations,

17

and any privacy protections the Court deems appropriate.

18

13.

This Order shall continue to be binding after the final termination of

19

this litigation. Within 60 days after the termination of this civil action and any

20

appeals thereof, all Protected Information and any copies thereof —including

21

documents created by Plaintiff or its counsel, or anyone working on their behalf,

22

that contain Protected Information —shall be returned to Defendants or their

23

counsel or destroyed, at Plaintiff's counsel's discretion, except for court filings

24

retained by Plaintiff's counsel as part oftheir litigation files, which shall remain

25

subject to the terms of this Order. Within 60 days after the termination of this civil

2
6

action and any appeals thereof, Plaintiff's counsel will certify to Defendants'

27

counsel that all such material has been returned or destroyed.

28

D

1

14.

This Order does not constitute a ruling on the question whether any

2

particular document is confidential and does not constitute a ruling on any

3

potential objection to the asserted confidentiality of any record, other than

4

objections based on the Privacy Act.

5

15.

Each party reserves the right to seek to modify the terms of this Order

6

at any time, and each party reserves the right to oppose any motion to modify the

7

terms of this Order.

8
9
10
11

SO ORDERED.
Dated:

~— ~

~
FREDERICK F. MUMM
United States Magistrate Judge

12
13
14
15
16
17
18
19
2
0
21
22
23
2
4
25
2
6
27
28

5

7

BRETT A. SHUMATE
Deputy A~ssistant Attorney General
JOEL McELVAIN
Assistant Director
ERIC B. BECKENHAUER,Cal. Bar No. 237526
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Pr~o~grams Branch
2 Massachusetts Ave. NW
0
Washin ton, DC 20530
Tel: 20~ 514-3338
Fax: 20~)616-8470
Emai : [e-mail]

8

Attorneysfor Defendants

1
2
3
4
5
6

9
10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE CENTRAL DISTRICT OF CALIFORNIA

12

No. 2:16-cv-03468-SJO-FFM

LOST ART LIQUIDS,
13
Plaintiff;
14
v.

ACKNOWLEDGMENT AND
CONSENT

15
16

FOOD AND DRUG
ADMII~TISTRATION, et al.,

17

Defendants.

18
19
20

I hereby certify that:

21

1.

22
23

I have read the Protective Order (the "Order") entered by the Court in

this case and I understand its terms.
2
.

I understand that Protected Information is being provided to me under

24

the terms ofthe Order, and that those materials are to be used only for purposes of

25

this litigation and for no other purpose.

2
6

3.

I agree to be fully bound by the provisions ofthe Order, including its

27

provisions limiting the use ofProtected Information and restricting its further

28

disclosure.

1

1

4.

I agree to return all Protected Information and any copies thereofto

2

Plaintiff's counsel(or to destroy such materials, and to certify their destruction in

3

writing to Plaintiff's counsel) upon termination ofthis civil action and any appeals

4

thereof, or when I am no longer assigned or retained to work on this case,

5

whichever comes first.

6
7

5.

termination of this case and are binding upon me for all time.

8
9

I understand that my obligations under the Order shall survive the

6
.

I hereby submit to the jurisdiction of the United States District Court

for the Central District of California for purposes of enforcement ofthe Order.

10

7
.

I understand that a violation ofthe Order is punishable by contempt of

11

Court and may subject me to sanctions and such other relief as the Court may

12

order.

13
14

Dated:

Signature:

15
16

Print Name:

17
18
19
2
0
21
22
23
24
25
2
6
27
28

2